ALIM @ GULAB Vs. STATE

JUDGEMENT

(1.) The present appeal is directed against the judgment dated 23 rd March, 2010 convicting the Appellant for offences under Sections 363/511 IPC, 366/511 IPC and 341/354/506 IPC and the order on sentence directing him to undergo Rigorous Imprisonment for five years and a fine of Rs.5000/- for offences under Section366/511 IPC, in default of payment of fine to further undergo Simple Imprisonment for six months, Rigorous Imprisonment for three years and fine of Rs.1000/- for offence under Section 363/511 IPC, in default of payment of fine to further undergo Simple Imprisonment for one month, 15 days Simple Imprisonment for offence under Section 341 IPC, Rigorous Imprisonment for one year and fine of Rs.500/- for offence under Section 354 IPC, in default of payment of fine to further undergo Simple Imprisonment for 15 days and Rigorous Imprisonment for one year and a fine of Rs.500/- for offences punishable under Section 506 IPC, in default of payment of fine to further undergo Simple Imprisonment for 15 days. The sentences were directed to run concurrently.

(2.) Learned counsel for the Appellant contends that even taking the allegations of the prosecutrix on the face of it, the only allegation against the Petitioner is that he gagged the mouth of the prosecutrix and picked her up. When she bit him, he released her. There is no allegation that the Appellant took her away and thus the necessary ingredients of Sections 366/363 IPC are not made out. Though prosecutrix in her statement in the FIR had stated that the Appellant took her at some distance and kissed her, however no such statement has been made in the witness box. The statement made to the Police cannot be relied upon and no conviction can be based thereon. In the absence of any conviction permissible under Section 366 read with Section 511 IPC, even accepting the other offences the Appellant is entitled to be released as he has already undergone nearly two years of imprisonment along with remissions.

(3.) Learned APP on the other contends that the prosecutrix was a minor girl aged 9 years whom the Appellant molested, misbehaved, picked her up and attempted to kidnap. In the witness box she has withstood the test of cross-examination and her testimony is consistent throughout. In view of the fact that the Appellant attempted to kidnap a 9 year old girl and molested her, no leniency should be shown and the appeal be dismissed.